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The facts stated in the affidavit in support of the belief that personal bias or prejudice exists must be facts which the affiant states of his own knowledge, and not merely on information and belief.

Ex parte American Steel Barrel Co.

supra.

Mr. Justice McKenna delivered the opinion of the court:

Section 21 of the Judicial Code [36 Stat. at L. 1090, chap. 231, Comp. Stat. § 986, 4 Fed. Stat. Anno. 2d ed. p. 832] provides as follows:

and moved for the assignment of another judge to preside at the trial. The motion was denied, and, upon the trial, defendants were convicted and each sentenced to twenty years' imprisonment. From the judgment and sentence they took [28] the case to the United States circuit court of appeals for the seventh circuit. That court reciting that certain questions of law under § 21 have arisen upon the affidavit and motion upon which the court is in doubt, and upon which it desires the advice and instructions of this court, certifies questions of the sufficiency of the affidavit and the duty of the judge thereunder, and also certifies the affidavit and other proceedings upon such motion.

"Whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the judge before whom the action or proceeding is to be The affidavit, omitting formal and untried or heard has a personal bias or necessary parts, is as follows: Petitioners prejudice either against him or in favor (defendants) represent "that they jointly of any opposite party to the suit, such and severally verily believe that his Honor judge [27] shall proceed no further Judge Kenesaw Mountain Landis has a therein, but another judge shall be personal bias and prejudice against cerdesignated in the manner prescribed in tain of the defendants, to wit: Victor L. the section last preceding or chosen Berger, William F. Kruse, and Adolph in the manner prescribed in section Germer, defendants in this cause, and twenty-three, to hear such matter. impleaded with J. Louis Engdahl and Every such affidavit shall state the Irwin St. John Tucker, defendants in facts and the reasons for the belief this case. That the grounds for the pethat such bias or prejudice exists. titioners' beliefs are the following facts: No party shall be entitled in any case That said Adolph Germer was born in to file more than one such affidavit; Prussia, a state or province of Germany; and no such affidavit shall be filed unless that Victor L. Berger was born in Rehaccompanied by a certificate of counsel back, Austria; that William F. Kruse is of record that such affidavit and applica- of immediate German extraction; that tion are made in good faith. The same said Judge Landis is prejudiced and proceedings shall be had when the pre-biased against said defendants because of siding judge shall file with the clerk of their nativity, and in support thereof the the court a certificate that he deems him-defendants allege that, on information and self unable for any reason to preside with belief, on or about the 1st day of Novemabsolute impartiality in the pending suit or action."

.

February 2, 1918, there was returned into the district court of the United States for the northern district of Illinois, an indictment against plaintiffs in error (it will be convenient to refer to them as defendants), charging them with a violation of the Act of Congress of June 15, 1917, known as the Espionage Act, chap. 30, 40 Stat. at L. 217, Comp. Stat. § 10,212a, Fed. Stat. Anno. Supp. 1918, p. 120.1 In due time they invoked $ 21 by filing an affidavit charging Judge Landis, who was to preside at the trial, with personal bias and prejudice against them,

1 "Whoever, when the United States is at war, shall wilfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies, and whoever, when the

ber said Judge Landis said in substance:
'If anybody has said anything worse about
the Germans than I have I would like to
know it so I can use it.' And referring
to a German who was charged with stating
that Germany had money and plenty of
men, and wait and see what she is going
to do to the United States,' Judge Landis
said in substance: 'One must have a
very judicial mind, indeed, not to be
prejudiced against the German-Americans
in this country. Their hearts are reeking
with disloyalty. This defendant is the
kind of a man that spreads this kind of
propaganda, and it has been spread until
it has affected practically all the Germans
United States is at war, shall wilfully cause.
or attempt to cause insubordination, dis-
loyalty, mutiny, or refusal of duty, in the
military or naval forces of the United
States, or shall wilfully obstruct the re-
cruiting or enlistment service of the United
States,
shall be punished.

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[29] in this country. This same kind of excuse of the defendant offering to protect the German people is the same kind of excuse offered by the pacifists in this country, who are against the United States, and have the interests of the enemy at heart by defending that thing they call the Kaiser and his darling people. You are the same kind of a man that comes over to this country from Germany to get away from the Kaiser and war. You have become a citizen of this country and lived here as such; and now, when this country is at war with Germany, you seek to undermine the country which gave you protection. You are of the same mind that practically all the German-Americans are in this country, and you call your selves German-Americans. Your hearts are reeking with disloyalty. I know a safeblower, he is a friend of mine, who is making a good soldier in France. He was a bank robber for nine years, that was his business in peace time, and now he is a good soldier, and as between him and this defendant, I prefer the safeblower.' "These defendants further aver that they have at no time defended the Kaiser, but, on the contrary, they have been opposed to an autocracy in Germany and every other country; that Victor L. Berger, defendant herein, editor of the Milwaukee Leader, a Socialist daily paper, Adolph Germer, National Secretary of the Socialist party, William F. Kruse, editor of the Young Socialists' Magazine, a Socialist publication, and J. Louis Engdahl, disapproved the entrance of the United States into this war.

"Your petitioners further aver that the defendants Tucker and Engdahl were born in the United States, and were not born in enemy countries, and are not immediate descendants of persons born in enemy countries, but verily believe, because they are impleaded with Berger, Kruse, and Germer, that they as well as Berger, Germer, and Kruse cannot receive a fair and impartial trial, and that the prejudice of said Judge Landis against said [30] Berger, Germer, and Kruse would prejudice the defense of said defendants Tucker and Engdahl, impleaded in this case."

The affidavit was accompanied by the certificate of Seymour Stedman, attorney for defendants, that the affidavit and application were made in good faith.

The questions certified are as follows: (1) Is the aforesaid affidavit of prejudice sufficient to invoke the operation of the act which provides for the filing of affidavit of prejudice of a judge?

(2) Did said Judge Landis have the lawful right to pass upon the sufficiency of the said affidavit of his prejudice, or upon any question arising out of the filing of said affidavit?

(3) Upon the filing of the said affidavit of prejudice of said Judge Landis, did the said Judge have lawful right and power to preside as judge on the trial of plaintiffs in error upon said indictment?

The basis of the questions is § 21, and the primary question under it is the duty and power of the judge,-whether the filing of an affidavit of personal bias or prejudice compels his retirement from the case, or whether he can exercise a judgment upon the facts affirmed, and determine his qualification against them and the belief based upon them.

These alternatives present the contentions in the case. Defendants contend for the first; the United States contends for the second. The assertion of defendants is that the mandate of the section is not subject to the discretion or judgment of the judge. The assertion of the United States is that the motion and its supporting affidavit, like other motions and their supporting evidence, are submitted for decision and the exercise of the judicial judgment upon them. In other words, the action of the affidavit is not "automatic," to quote the Solicitor General, but depends upon the substance and merit of its reasons and the truth of its facts, and upon both the judge has [31] jurisdiction to pass. The issue is, therefore, precise; and, while not in broad compass, is practically of first impression as now presented.

In Glasgow v. Moyer, 225 U. S. 420, 56 L. ed. 1147, 32 Sup. Ct. Rep. 753, the section was referred to, but not passed upon. In Ex parte American Steel Barrel Co. 230 U. S. 35, 57 L. ed. 1379, 33 Sup. Ct. Rep. 1007, the phase of the section presented here was not presented. There proceedings in bankruptey had progressed to a decree of adjudication, and the judge who had conducted them was charged by certain creditors with bias and prejudice, based on his rulings in the case. Such use of § 21 was disapproved. "It was never intended," it was said, "to enable a discontented litigant to oust a judge because of adverse rulings made, for such rulings are reviewable otherwise; but to prevent his future action in the pending cause." As pertinent to the comment and to the meaning of § 21, we may say that Judge Chatfield, against whom the affidavit was directed, said that he felt that the intention of § 21 was

1920.

BERGER v.

UNITED STATES.

"to cause a transfer of the case without, statements,-a distinction to which we
reference to the merits of the charge of shall presently advert.
bias," and he did so immediately, in order,
as he said, "that the application of the
creditors" might "be considered as speed-
ily as possible by such judge as" might
Another judge was
"be designated."
designated, and, to restrain action by the
latter and vacate the orders that he had
made, and to command Judge Chatfield
to resume jurisdiction, mandamus was
sought. It was denied. The case estab-
lishes that the bias or prejudice which
can be urged against a judge must be
based upon something other than rulings
in the case.

The cases at circuit in which § 21 was considered have not much guidance. They, however, deserve attention. Ex parte N. K. Fairbank Co. 194 Fed. 978, may be considered as expressing power in the presiding judge to pass upon the sufficiency of the facts affirmed. In Ex parte Glasgow, 195 Fed. 780, the question came up [32] upon an application for a writ of habeas corpus, and it appeared that was not filed the affidavit of bias until after trial of the case, and when the court was about to pass upon a motion in arrest of judgment and new trial. It was held that § 21 was not proapplicable at such stage of the ceedings. Henry v. Speer, 120 C. C. A. 207, 201 Fed. 869, was a petition for mandamus to require an affidavit of bias against District Judge Speer, to be certified to the senior circuit judge, that the latter might determine its sufficiency, and to restrain Judge Speer from exerThe writ cising jurisdiction of the case. was refused on the ground that the affidavit did not conform to § 21, in that it omitted to charge "personal" bias, a charge of such bias, it was held, being a necessary condition. The court (circuit court of appeals for the fifth circuit), by Judge Meek, said: "Upon the making and filing by a party of an affidavit under the provisions of § 21, of necessity there is imposed upon the judge the duty of examining the affidavit to determine whether or not it is the affidavit specified and required by the statute, and to determine its legal sufficiency. If he finds it to be legally sufficient, then he has no other or further duty to perform than that prescribed in § 20 of the Judicial Code. He is relieved from the delicate and trying duty of deciding upon the question of his own disqualification." This comment sustains defendants' view of § 21, and marks a distinction between determining the legal sufficiency of the affidavit and passing upon the truth of its

The cases (one being excepted), to the
extent they go, militate against the con-
tention of the government, and they have
confirmation in the words of the section.
Their declaration is that "whenever a
party to any action or proceeding, civil
or criminal, shall make and file an affidavit
that the judge before whom the action or
proceeding is to be tried or heard has a
personal bias or prejudice [33] either
against him or in favor of any op-
posite party to the suit, such judge
be designated
another judge shall
shall proceed no further therein, but

There
to hear such matter."
no ambiguity in the declaration,
is
and seemingly nothing upon which con-
struction can be exerted,-nothing to
qualify or temper its words or effect.
It is clear in its permission and di-
rection. It permits an affidavit of per-
sonal bias or prejudice to be filed, and
upon its filing, if it be accompanied by
certificate of counsel, directs an immediate
cessation of action by the judge whose
bias or prejudice is averred, and, in his
stead, the designation of another judge.
And there is purpose in the conjunction;
other. The exclusion of one judge is
its elements are complements of each
emphasized by the requirement of the
designation of another.

It

But it is said that there is modification of the absolutism of the quoted declaration in the succeeding provision that the "affidavit shall state the facts and reasons for the belief" of the existence of the bias or prejudice. It is urged that the purpose of the requirement is to submit the reality and sufficiency of the facts to the judgment of the judge, and their support of the averment or belief of the affiant. is in effect urged that the requirement But this is can have no other purpose; that it is idle else, giving an automatism to the affidavit which overrides everything. a misunderstanding of the requirement. It has other and less extensive use, as pointed out by Judge Meek in Henry v. Speer, supra. It is a precaution against abuse, removes the averments and belief from the irresponsibility of unsupported opinion, and adds to the certificate of for counsel the supplementary aid of the penalties attached to perjury. Nor do we think that this view gives room frivolous affidavits. Of course, the reasons and facts for the belief the litigant entertains are an essential part of the affidavit, and must give fair support to the charge of a bent of mind that may prevent or impede [34] impartiality of judgment.

485

The affidavit of defendants has that character. The facts and reasons it states are not frivolous or fanciful, but substantial and formidable, and they have relation to the attitude of Judge Landis's mind toward defendants.

It is, however, said that the assertion and the facts are stated on information and belief, and that hence the affidavit is wholly insufficient, § 21 requiring facts to be stated, "and not merely belief." The contention is that "the court is expected to act on the affidavit itself," and that, therefore, "the act of Congress requires facts,-not_opinions, beliefs, rumors, or gossip." Ex parte American Steel Barrel Co. 230 U. S. 35, 57 L. ed. 1379, 33 Sup. Ct. Rep. 1007, is cited for the contention. We do not know what counsel means by "opinions, beliefs, rumors, or gossip." The belief of a party the section makes of concern, and if opinion be nearer to or farther from persuasion than belief, both are of influence, and universally regarded as of influence, in the affairs of men, and determinative of their conduct; and it is not strange that § 21 should so regard them.

inconvenience worthy of mention; for of
what concern is it to a judge to preside
in a particular case? of what concern to
other parties to have him so preside? and
any serious delay of trial is avoided by
the requirement that the affidavit must be
filed not less than ten days before the
commencement of the term.

Our interpretation of § 21 has, there-
fore, no deterring consequences, and we
cannot relieve from its imperative con-
ditions upon a dread or prophecy that
they may be abusively used. They can
only be so used by making a false affi-
davit; and a charge of, and the penalties
of, perjury, restrain from that, perjury
in him who makes the affidavit, connivance
therein of counsel, thereby subjecting
him to disbarment. And upon what in-
ducement and for what achievement? No
other than trying the case by one judge
rather than another, neither party nor
counsel having voice or influence in the
designation of that other; and the section,
in its care, permits but "one such affi-
davit."

But if we concede, out of deference to judgments that we respect, a foundation for the dread, a possibility to the We may concede that § 21 is not ful- prophecy, we must conclude Congress filled by the assertion of "rumors or gos- was aware of them and considered that sip," but such disparagement cannot be there were countervailing benefits. At applied to the affidavit in this case. Its any rate, we can only deal with it as it is statement has definite time and place and expressed, and enforce it according to its character, and the value of averments on expressions. Nor is it our function to information and belief in the procedure approve or disapprove it; but we may of the law is recognized. To refuse their say that its solicitude is that the tribuapplication to § 21 would be arbitrary nals of the [36] country shall not only and make its remedy unavailable in many, be impartial in the controversies subif not in most, cases. The section permits mitted to them, but shall give assurance only the affidavit of a party, and Ex that they are impartial,-free, to use the parte American Steel Barrel Co. supra, words of the section, from any "bias or decides that it must be based upon facts prejudice" that might disturb the normal antedating the trial, not those occurring course of impartial judgment. And to during the trial. In the present case the accomplish this end the section withinformation was of a definite incident, draws from the presiding judge a deand its time and place were given. Be- cision upon the truth of the matters alsides, it cannot be the assumption of § 21 leged. Its explicit declaration is that, that the bias or prejudice of a judge in a upon the making and filing of the affiparticular case would be known by every-davit, the judge against whom it is body, and necessarily, therefore, to deny directed "shall proceed no further thereto a party [35] the use of information received from others is to deny to him at times the benefit of the section.

We are of opinion, therefore, that an affidavit upon information and belief satisfies the section, and that, upon its filing, if it show the objectionable inclination or disposition of the judge, which we have said is an essential condition, it is his duty to "proceed no further" in the case. And in this there is no serious detriment to the administration of justice, nor

in, but another judge shall be designated
in the manner prescribed in § 23 to hear
such matter." And the reason is easy
to divine. To commit to the judge a de-
cision upon the truth of the facts gives
chance for the evil against which the see-
tion is directed. The remedy by appeal
is inadequate. It comes after the trial,
and if prejudice exist, it has worked
its evil, and a judgment of it in a review-
ing tribunal is precarious. It goes there
fortified by presumptions, and nothing

1

1920.

BERGER v. UNITED STATES.

can be more elusive of estimate or decision than disposition of a mind in which there is a personal ingredient.

After overruling the motion of plaintiffs for his displacement, Judge Landis permitted to be filed a stenographic report of the incident and language upon which the motion was based. We, however, have not discussed it, because, under our interpretation of § 21, it is excluded from consideration

We come, then, to the questions certified, and to the first we answer Yes; that is, that the affidavit of prejudice is sufficient to invoke the operation of the act. To the second we answer that, to the extent we have indicated, Judge Landis had a lawful right to pass upon the sufficiency of the affidavit. To the third, we answer No; that is, that Judge Landis had no lawful right or power to preside as judge on the trial of defendants upon the indictment.

So ordered.

When the bill came before the Senate, the section was amended so as to require the facts, and the reasons for the belief that bias or prejudice existed, to be set forth, and the affidavit is required to be accompanied by a certificate of counsel of record that it and the application are made in good faith. Senate Document, No. 848, 61st Congress, 3d Session. It is thus apparent that the section, in the form in which it finally became part of the Judicial Code, intended that the bias or prejudice which should disqualify [38] a judge should be personal against the objecting party, and that it should be established by an affidavit which should set forth the reasons and facts upon which the charge of bias or prejudice was based. The evident purpose of this requirement was to require a showing of such reasons and facts as would prevent imposition upon the court, and establish the propriety of the affidavit of disqualification. "It is not sufficient," said the late Mr. Justice Brewer, when a member of the supreme court of Kansas, in Emporia v. Volmer, 12 Kan. 627, "that a prima facie case only be shown,-such a case as would require the sustaining of a challenge to It must be strong enough to

[37] Mr. Justice Day, dissenting: As this case is to settle the practice for this and similar cases which may arise in the Federal courts, and as the opinion does not consider some aspects of the record, I venture to state the reasons a juror. which impel me to reach a different con-overthrow the presumption in favor of clusion than that announced by the the trial judge's integrity and of the clearness of his perceptions." majority.

An examination shows that statutes exist in a number of states, covering the subject under consideration. These statutes vary in character and in the requirements for establishing the bias or prejudice of the judge which may require him to abstain from sitting at the trial of a particular case.

I accept the opinion of the majority that the judge, under the requirements of this statute, may pass upon the sufficiency of the affidavit, subject to a review of his decision by an appellate court, and if it be sufficient to show personal bias and prejudice, the judge should not try In some of the case. them an affidavit of belief of prejudice, or that a fair trial cannot be had before a particular judge, is sufficient to disqualify him. Other statutes require supporting affidavits and the certificate of counsel, and provide for a hearing on the matter of disqualification. In some states the matter is required to be heard before another judge.

But I am unable to agree that, in cases of the character now under consideration, the statement of the affidavit, however unfounded, must be accepted by the judge as a sufficient reason for his disqualification, leaving the vindication of the integrity and independence of the judge to the uncertainties and inadequacy of a prosecution for perjury if it should appear that the affidavit contains known misstatements.

The Federal statute, now under conNotwithstanding the filing of the affisideration, had its origin in an amendment to the Judicial Code, introduced in davit purporting compliance with the the House of Representatives when the statute, the court has a right to use all adoption of the Code was under consider- reasonable means to protect itself from ation. As adopted in the House, the imposition. Davis v. Rivers, 49 Iowa, affidavit was required to set forth the 435. The personal bias or prejudice of reasons for the belief that personal bias or prejudice existed against the party, or in favor of the opposite party to the suit. See Congressional Record, vol. 46, part 3, pp. 2626 et seq.

the judge against the defendants in this case is said to be established by language imputed to the judge as his utterances concerning the attitude of the German people during the progress of the war.

487

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